Ross only need prove substantial similarity, but this requires showing (among other things) that an ordinary audience member would find the entirety of the LMFAO song substantially similar to “Hustlin’.” A quick listen to both shows this will be difficult. The way LMFAO performs the lyric is certainly similar in its repetitive nature and its cadence, but “Hustlin’” repeats the entire phrase while “Party Rock Anthem” only repeats the word “shuffling.’” Moreover, the rest of the songs are completely different. It is unlikely Ross can show that an audience would view the works — in their entirety — as substantially similar.

Even if LMFAO’s song is found to be a derivative work, the group can still escape liability under the doctrines of fair use or parody (or Ross’ authorization — but we know we don’t have that here).

Ross and his co-composer Jermaine Jackson seek an injunction and maximum statutory damages. Although there is no specific amount named, the figure could be well over $10 million. Not only have 7.5 million copies of the LMFAO song been sold, but the song is used in films, TV shows, video games, and advertisements, further complicating the task of calculating damages. The phrase itself is even used on T-shirts. So far, Ross has included two additional defendants, Kobalt Music Publishing and Kia Motors Company, in the Southern District of Florida lawsuit.

Ultimately, Ross’ claim is weak, given the dramatic differences between the entirety of his song and the entirety of LMFAO’s song. A listener looking for a party song would never choose Ross’ slow rap over LMFAO’s fast-paced dance tune. What do you think? Were you confused when you first heard “Party Rock”? Did you confuse the two songs? How much would you give in damages?